The Indiana Law Promoting Discrimination Is a New Low

Last week, Indiana Governor Mike Pence (R) signed SB 101 into law, the so-called “Religious Freedom Restoration Act.” Apparently, Pence was surprised at the nationwide outcry against the law and he’s adopted a defensive crouch.

“There has been a lot of misunderstanding about this bill,” Pence asserts. “This bill is not about discrimination, and if I thought it legalized discrimination in any way I would’ve vetoed it.”

But of course it’s about discrimination! That’s the point of the law. It invites individuals and corporations to violate state and local laws, regulations and rules, and claim, as a legal defense in court, that they were following their own religious principles.

On its face, the Indiana law doesn’t mention sexuality. But the measure is aimed at the gay-lesbian-bisexual-trensgender community and not others because the state can’t override federal law that protects against discrimination based on race, color, religion, sex, and national origin. While other states are filling the gap between federal and state law, passing LGBT Fairness Acts to prevent discrimination based on sexual orientation and gender identity or expression, Indiana is going in the opposite direction.

How does this work? Indianapolis, Bloomington, South Bend, Evansville, and other cities and counties currently prohibit discrimination on the basis of sexual orientation and gender identity. Under SB 101, individuals and companies can insist that equal treatment of LGBT people violates their religious principles. It would be naïve to think that companies won’t use SB 101 to discriminate, or that individuals won’t be encouraged to discriminate by right-wing organizations that will promise to cover their legal defense.

Conservatives have a fallback argument. Even if the law invites individuals and corporations to discriminate, they ask, why is everybody picking on Indiana? The federal government and 19 other states have passed similar laws, they say.

It is true that other jurisdictions have enacted so-called “religious freedom” laws, but Indiana’s is the broadest and worst.

Media Matters did a good job of explaining why the Indiana law is not comparable to the federal statute enacted in 1993 in reaction to a Supreme Court ruling. While the federal law is limited and fairly benign, SB 101 is written very broadly and designed to provide legal ammunition for conservatives in litigation against governments and in private disputes.

The argument that Indiana’s law is the same as 19 other states is propaganda based upon the law’s title and not its contents. (Sadly, The Washington Post repeated that propaganda.) A thorough legal analysis of SB 101’s language can be found here.

SB 101 goes beyond other laws because its definition of “exercise of religion” is unlimited; potential complainants are unlimited (individuals, partnerships, corporations); and it applies to unlimited types of lawsuits.

Last year, the Arizona legislature passed a “religious freedom” bill that was similarly overreaching, and right-wing Republican Governor Jan Brewer, noting the legislation “could divide Arizona in ways we cannot even imagine and no one would ever want,” vetoed it. It seems that Pence lacks Brewer’s common sense. The new Indiana law invites other states to enact this kind of extreme legislation, and it looks like Arkansas will soon accept that invitation.

Nearly seven score years ago, our nation declared its independence based on the proposition that “all men are created equal,” and a few years later, our founders adopted the First Amendment, guaranteeing everyone the right to religious freedom. These founding documents have served us well. We don’t need SB 101’s religious “rights,” and the idea of using religion to bully others violates America’s fundamental values.

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About Bernie Horn

Bernie Horn is Senior Advisor for the Public Leadership Institute and the Progressive Majority Action Fund. He has worked in politics for more than 25 years as a lawyer, lobbyist, political consultant, policy director, and communications trainer.
Bernie is the author of Framing the Future: How Progressive Values Can Win Elections and Influence People, published in 2008 by Berrett-Koehler, and co-author of Voicing Our Values: A message guide for candidates and lawmakers, published in 2014. He was previously a Senior Fellow at the Campaign for America’s Future, working on domestic policy and message framing. Between 2000 and 2008, Bernie was Senior Director for Policy and Communications at the Center for Policy Alternatives (CPA). Among other things, he wrote CPA’s flagship policy books: eight editions of the Progressive Agenda for the States and two editions of the Progressive Platform for the States. While at CPA, he taught message framing to hundreds of elected officials and candidates.
From 1994 to 2000, Bernie was President of Strategic Campaign Initiatives, Inc., a political consulting firm that helped elect and reelect hundreds of federal, state and local officials. Additionally, he helped win issue campaigns for increased gun control, tobacco taxes and health care, and against casino gambling and restrictions on abortion. Between 1988 and 1994, Bernie directed legislative strategy in all state legislatures for Handgun Control, Inc. (now the Brady Campaign), and served as one of the chief lobbyists for the Brady Bill, drafted and lobbied for the federal ban on semiautomatic assault weapons, and conceived the federal ban on handgun sales to minors. Earlier, he was a campaign manager and issues director for congressional campaigns. Bernie is a graduate of the Johns Hopkins University and the Georgetown University Law Center.